Contents

Table of Cases xvii

1. INTRODUCTION 1

PART i: THE CURRENT LAW

2. LEGAL INTERVENTION WHEN A FETUS IS

THREATENED OR HARMED 7
Maternal Conduct Occurring during Pregnancy
Child Protection Proceedings—Before Birth
Child Protection Proceedings—After Birth
Criminal Proceedings—Before Birth
Criminal Proceedings—After Birth
Conduct by a Third Party
When Medical Intervention is Declined
Antenatal Harm: The Scope of the Law

3. ELEMENTS OF A NEGLIGENCE ACTION IN

OBSTETRICS AND MIDWIFERY 33
The Standard of Care in Diagnosis and Treatment
Setting the Standard
Expert Evidence
The Obligation to Provide Appropriate Information
Harm and the Problem of Causation

4. NEGLIGENT TREATMENT IN OBSTETRICS AND

MIDWIFERY 56
Are Damages Recoverable for Antenatal Injury?
Harm in Utero or at Delivery
Pre-Conception Harm
Negligent Diagnosis or Treatment
Harm Caused to Mother or Child
Pre-Conception Negligence
Negligent Antenatal or Perinatal Care
xii Contents
Unwanted Pregnancy or the Birth of an Unwanted Child
Identifying the Harm
Causation

5. NEGLIGENT FAILURE TO PROVIDE APPROPRIATE

INFORMATION IN OBSTETRICS AND MIDWIFERY 82
The Nature of the Action
Harm Caused to Mother or Child
Unwanted Pregnancy or the Birth of an Unwanted Child
Tubal Ligation: Non-Disclosure of Risk of Failure
Failure to Diagnose Pregnancy
When the Child is Disabled

6. OTHER ACTIONS IN OBSTETRICS AND MIDWIFERY 102

A Wrongful Death or Survival Action Following a Stillbirth
The Action Disallowed
The Action Allowed
Wrongful Life
The Action Disallowed
The Action Allowed

7. THE ASSESSMENT OF DAMAGES 112

Damages for Injury or Disability
Damages for Stillbirth or Perinatal Death
Damages for Unwanted Pregnancy or the Birth of an
Unwanted Child
A Normal Child
A Disabled Child

PART Ii: ASSESSING THE IMPACT OF THE LAW

8. THE LEGAL STATUS OF THE FETUS 135

Criminal Proceedings
Homicide and Assault
The'Born Alive'Rule
Legislative Intervention
Drug Use During Pregnancy
Abortion
 Contents xiii
Child Protection Proceedings
Proceedings to Impose Medical Treatment
Negligence Actions
Differing Approaches
Pre-Conception Negligence
Wrongful Death Actions
Some Implications
Criminal Proceedings
Child Protection Proceedings
Proceedings to Impose Medical Treatment
Negligence Actions
The Shadow of Roe v Wade
Conclusion
Choosing between Two Perspectives

9. A QUESTION OF AUTONOMY? 189

The Pregnant Woman and her Fetus: One Entity or Two?
Three Models
Assessing the Three Models
Part of the Woman's Body
Separate Entities
'Not- One-But-Not- Two'
Autonomy: Some Basic Principles
Legal Intervention to Impose Treatment
Some Assumptions
A Balancing of Interests?
Medical Treatment for the Benefit of Another Person
Medical Treatment for the Benefit of a Fetus
The Nature of the Legal Process
Differing Perspectives
Legal Intervention During Pregnancy
Risks Posed by Antenatal Conduct
A Balancing of Interests?
The Nature of the Legal Process: Criminal Proceedings
The Nature of the Legal Process: Child Protection Proceedings
The Broader Picture: By-Products of Legal Intervention
Conclusion
xiv Contents
10. APPLYING THE LAW OF NEGLIGENCE 240
To Whom is a Duty of Care Owed?
Negligent Diagnosis or Treatment
Negligent Non-Disclosure
Reliance on the Doctrine of Informed Consent
Identifying the Limits of the Doctrine
An Alternative Formulation: A General Duty to Inform?
The Birth of an Unwanted Child
Stillbirths
Causation
The Problem of Cerebral Palsy
Claims Arising from Failure to Advise of Risks
Pre-Conception Negligence
Damages
The Birth of an Unwanted Child
A Normal Child
A Disabled Child
Conclusion: Policy Decisions?

11. AFTER BIRTH: MATERNAL LIABILITY FOR

ANTENATAL CONDUCT? 278
Damages Claims Against Parents
Maternal Liability for Conduct During Pregnancy?
Identifying the Problem
English Law
United States, Canadian, and Australian Law
Broader Implications: Fetal Status and Maternal Autonomy
Maternal Negligence and Joint Liability?
Identifying the Problem
A Question of Contributory Negligence?
Conclusion

12. THE DUTY OF CARE IN OBSTETRICS AND

MIDWIFERY 304
A Changing Climate: Challenging Medicalization
Defining the Practitioner's Duty of Care
 Contents xv
Setting the Standard
Special Features of Obstetrics and Midwifery
The Standard Expected ofMidwives
The Standard Expected of General Practitioners and Specialists
Liability for Failure to Advise of Risks
Antenatal Care
Perinatal Care
The Standard of Care
Two Practical Problems
Fully Informed Choice in the Context of Childbirth
Liability for Non-intervention?
Conclusion

13. THE REALITY OF NEGLIGENCE ACTIONS AND

THE NEED FOR REFORM 340
The Reality of Medical Malpractice Actions
The System in Action
Standard Setting
Special Features of Obstetric Litigation
The Way Forward
Reform of Negligence Law
Alternative Procedures
Arbitration or an Administrative Tribunal
No Fault Schemes
Regulation by Professional Bodies
Redesigning the System

14. CONCLUSION: THE ROLE OF THE LAW 365

Intervention During Pregnancy
The Law's Response When Something Goes Wrong
The Nature of Obstetric Malpractice Claims
The Challenge to Medicalization
Recognizing the Limits of the Law

Glossary of Medical Terms 378

Glossary of Legal Terms 385
Index 389
Childbirth and the Law. John Seymour.
© Oxford University Press 2000. Published 2000 by Oxford University Press.
Childbirth and the Law. John Seymour.
© Oxford University Press 2000. Published 2000 by Oxford University Press.
Childbirth and the Law. John Seymour.
© Oxford University Press 2000. Published 2000 by Oxford University Press.
Childbirth and the Law. John Seymour.
© Oxford University Press 2000. Published 2000 by Oxford University Press.
Childbirth and the Law. John Seymour.
© Oxford University Press 2000. Published 2000 by Oxford University Press.
Childbirth and the Law. John Seymour.
© Oxford University Press 2000. Published 2000 by Oxford University Press.
Childbirth and the Law. John Seymour.
© Oxford University Press 2000. Published 2000 by Oxford University Press.
Childbirth and the Law. John Seymour.
© Oxford University Press 2000. Published 2000 by Oxford University Press.
Childbirth and the Law. John Seymour.
© Oxford University Press 2000. Published 2000 by Oxford University Press.
Childbirth and the Law. John Seymour.
© Oxford University Press 2000. Published 2000 by Oxford University Press.
Childbirth and the Law. John Seymour.
© Oxford University Press 2000. Published 2000 by Oxford University Press.
Childbirth and the Law. John Seymour.
© Oxford University Press 2000. Published 2000 by Oxford University Press.
Childbirth and the Law. John Seymour.
© Oxford University Press 2000. Published 2000 by Oxford University Press.
Childbirth and the Law. John Seymour.
© Oxford University Press 2000. Published 2000 by Oxford University Press.